Singh v. Holder , 587 F. App'x 694 ( 2014 )

13-2357
Singh v. Holder
BIA
Poczter, IJ
A200 819 137
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 30th day of October, two thousand fourteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 ROBERT D. SACK,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 LAKHWINDER SINGH,
14 Petitioner,
15
16 v. 13-2357
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lakhwinder Singh, Pro Se, Richmond
24 Hill, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Shelley R. Goad, Assistant
28 Director; Russell J.E. Verby, Senior
29 Litigation Counsel, Office of
30 Immigration Litigation, United
1 States Department of Justice,
2 Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Lakhwinder Singh, a native and citizen of India, seeks
9 review of a May 16, 2013, decision of the BIA affirming an
10 Immigration Judge’s (“IJ”) March 5, 2012, decision, denying
11 his application for asylum, withholding of removal, and
12 relief under the Convention Against Torture (“CAT”). In re
13 Lakhwinder Singh, No. A200 819 137 (B.I.A. May 16, 2013),
14 aff’g No. A200 819 137 (Immig. Ct. N.Y. City Mar. 5, 2012).
15 We assume the parties’ familiarity with the underlying facts
16 and procedural history in this case.
17 Under the circumstances of this case, we review the
18 IJ’s decision as supplemented by the BIA. Yan Chen v.
19 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
20 standards of review are well established. See 8 U.S.C.
21 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
22 (2d Cir. 2009).
23 For applications such as Singh’s, governed by the REAL
24 ID Act of 2005, the agency may, “[c]onsidering the totality
2
1 of the circumstances,” base a credibility finding on the
2 applicant’s “demeanor, candor, or responsiveness,” the
3 plausibility of his account, and inconsistencies in his
4 statements, “without regard to whether” they go “to the
5 heart of the applicant’s claim.” 8 U.S.C.
6 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
7 167 (2d Cir. 2008) (per curiam). We “defer therefore to an
8 IJ’s credibility determination unless, from the totality of
9 the circumstances, it is plain that no reasonable fact-
10 finder could make such an adverse credibility ruling.” Xiu
11 Xia Lin, 534 F.3d at 167.
12 Here, the IJ based the adverse credibility
13 determination on inconsistencies between Singh's testimony
14 and statements he made in his credible fear interview,
15 problems with his ration card, and the lack of corroborating
16 evidence. While we do not agree that the two dates on the
17 card rendered it inherently suspect, cf. Siewe v. Gonzales,
18 480 F.3d 160, 170 (2d Cir. 2007) (holding that false
19 document attributable to applicant may undermine applicant’s
20 credibility), the adverse credibility determination is
21 nevertheless supported by Singh’s omissions during his
22 credible fear interview, the lack of corroboration, and his
3
1 failure to submit reasonably available corroborating
2 evidence.
3 Singh testified that Indian police officers beat and
4 detained him, and yet he failed to mention the beating and
5 detention by police during his credible fear interview. The
6 IJ also reasonably rejected Singh’s explanation that his
7 smuggler told him not to mention the Indian police at the
8 interview. This explanation was raised only after his
9 explanation of fatigue was discounted, and was called into
10 question because Singh nevertheless mentioned his efforts to
11 file a police complaint after a second attack by members of
12 the opposing political party. See Majidi v. Gonzales, 430
13 F.3d 77, 80-81 (2d Cir. 2005) (holding that an IJ need not
14 credit an explanation for an inconsistency unless the
15 explanation would compel a reasonable fact finder to do so).
16 His explanation also conflicted with his later explanation
17 that he was only told not to criticize the Indian police.
18 Accordingly, the IJ reasonably concluded that the omissions
19 called Singh’s credibility into question. See 8 U.S.C.
20 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d
21 at 167.
22
4
1 In light of Singh’s undermined credibility, the IJ was
2 entitled to consider Singh’s failure to provide evidence
3 that is relevant and reasonably available as further bearing
4 on his credibility. Biao Yang v. Gonzales, 496 F.3d 268,
5 273 (2d Cir. 2007) (per curiam). An IJ may require
6 relevant, reasonably available corroborating evidence. See
7 8 U.S.C. § 1158(b)(1)(B)(ii) (even where credible, an alien
8 may fail to meet burden of proof if he fails to provide
9 reasonable available evidence). Although Singh submitted a
10 letter from the president of his political party, the IJ
11 reasonably gave it minimal weight because it was unnotarized
12 and the author did not provide identification documents or
13 make himself available for cross-examination. See Xiao Ji
14 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
15 2006) (the weight to be accorded to documentary evidence
16 lies largely within the agency’s discretion). Singh
17 testified that his family hid him following the attacks and
18 witnessed continued police efforts to capture him, and that
19 he could have obtained letters from them. Because he failed
20 to do so, the IJ reasonably found that Singh failed to
21 rehabilitate his testimony and that his failure to provide
22 available corroborating evidence both further weakened his
23 credibility and prevented him from meeting his burden of
5
1 proof. 8 U.S.C. § 1158(b)(1)(B)(ii), (iii); Biao Yang, 496
2 F.3d at 273.
3 All of Singh’s claims are based on the same factual
4 predicate. As a result, the adverse credibility and burden
5 findings are dispositive as to asylum, withholding of
6 removal, and CAT relief. See Paul v. Gonzales, 444 F.3d
7 148, 156 (2d Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DENIED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
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